39-3909. CRITERIA. (1) The court may grant an order authorizing a specific sterilization procedure if the court finds by clear and convincing evidence that the person subject to this chapter is functionally capable of giving and withholding informed assent to the proposed sterilization and has given informed assent to the proposed sterilization, or that the person is functionally incapable of giving or withholding informed assent but sterilization is in the best interest of the person.

(2) The person subject to this chapter assents to sterilization if the person manifests an uncoerced willingness to undergo sterilization after being fully informed of the nature, risks, consequences and alternatives to the procedure. A person who lacks the capacity to manifest an uncoerced willingness or unwillingness to sterilization cannot assent to the procedure. To determine whether the person is capable of giving informed assent, the court shall consider whether the person understands and appreciates:

(a) The causal relationship between sexual intercourse and pregnancy or parenthood;

(b) The causal relationship between sterilization and the impossibility of pregnancy or parenthood;

(c) The nature of the sterilization operation including the pain, discomfort and risks of the procedure;

(d) The probable permanency and irreversibility of the sterilization procedure;

(e) All medically approved alternatives to sterilization;

(f) The consequences of initiation of pregnancy or becoming pregnant, mothering or fathering a child, and becoming a parent; and

(g) The power to change one’s mind about being sterilized at any time before the procedure is performed.

To assure the adequacy of the person’s informed assent, evidence shall be presented showing that the person received appropriate counseling from the physician who will perform the sterilization and at least one (1) other qualified independent counselor such as a social worker with a master’s degree, a clinical nurse specialist, or a licensed psychologist or psychiatrist. The counseling shall cover the benefits or advantages to sterilization and conversely the losses and disadvantages of sterilization including the feelings, values and lifestyle changes attendant with sterilization.

Witnesses who attest in court as to the soundness of informed assent shall comment on and assess the person’s understanding of each issue and shall comment on and assess the degree to which the person expresses an uncoerced willingness to accept each risk and consequence. Any reservations or resistance expressed or otherwise evidenced by the person shall be disclosed to the court.

(3) The persons subject to this chapter may be sterilized if the court finds by clear and convincing evidence that:

(a) The person is functionally incapable of giving or withholding informed assent and that the incapacity is not likely to change in the foreseeable future; and

(b) Sterilization is in the best interest of the person.

(4) To determine whether sterilization is in the best interest of the person subject to this chapter the court shall find by clear and convincing evidence that:

(a) The person is likely to be fertile. Fertility may be conclusively presumed if the medical evidence indicates normal development of the sexual organs, and the evidence does not otherwise raise doubts about fertility;

(b) There is a likelihood that the person will engage in sexual intercourse;

(c) The nature and extent of the person’s disability, as determined by empirical evidence and not solely the basis of standardized tests, renders him or her permanently incapable of caring for a child, even with reasonable assistance;

(d) The person will suffer severe physical or psychological harm if he or she were to parent a child, which may include any harm occurring from the removal of the child from the person’s custody;

(e) The person will not suffer severe physical or psychological harm from the sterilization;

(f) Less restrictive alternatives to sterilization, both at the present time and under foreseeable future circumstances, are not feasible or medically advisable;

(g) The proposed method of sterilization entails the least invasion of the body of the individual; and

(h) Scientific or medical advances will not occur within the foreseeable future which will materially make possible the improvement of the person’s condition with respect to sterilization.

History:

[39-3909, added 2003, ch. 189, sec. 2, p. 514.]